Long v. City of Portland , 53 Or. 92 ( 1908 )

Decided January 19, 1909.

On Petition for Rehearing.

[98 Pac. 1111.]

Mr. Justice Eakin

delivered the opinion of the court.

5. By this motion counsel for the city urge no question that was not considered in the opinion, but insists that our conclusion is wrong in holding that the legislative act of 1907 is not a violation of Section 2, Article XI, of the constitution, which forbids any amendment of a city charter by legislative enactment. We have again examined the questions involved, and adhere to the former opinion. We think this objection is fully considered in the opinion. It is not there contended that this statute does not affect section 49 of the charter. It does extend the time within which an ordinance may become operative; but this is incident to and necessary for the accomplishment of the purpose of Section la, Article IV, of the constitution, and is authorized by, and in compliance with, the terms thereof. The power of the referendum is fully reserved to the people, and is not dependent upon anything, except a provision by general law as to the manner of its exercise. It is not possible to give it effect without some provision similar to the one complained of here, which is within the very terms, as well as intention, of the referendum provision, and is as authoritative under the constitution as the prohibition of Section 2, Article XI. And therefore the legislative enactment contemplated by section la cannot be considered as an amendment of the charter within the meaning of the former section.

6. The effect of the referendum will not, however, affect in any manner ordinances or resolutions of the council that are not “municipal legislation.” Section 11 of the legislative act of 1907 (Laws 1907, p. 406), provides, that “no city ordinance, resolution or franchise, shall take effect and become operative until thirty days after its passage by the council and approved by the mayor,” and defendant cites this provision as being especially cumbersome to the prompt and expeditious transaction of municipal business, and in proceedings that are in invitum, such as those relating to street improvements; but this legislative act can only apply to such ordinances, resolutions, and franchises as are subject to the referendum. It cannot be broader than the provision- it seeks to aid. The’ only acts of the council that are subject to the 'referendum, by Section la, Article IV, are such as come within the term “municipal legislation.” Legislation as here contemplated must be considered in the sense of general laws, namely, rules of civil conduct prescribed by the lawmaking power and of general application. By Opinion of The Justices, 66 N. H. 629 (38 Atl. 1076), the law is said to be a rule — not a transient, sudden order to and concerning a particular person, but something permanent, uniform, and universal. The action of a municipal council may relate to questions or subjects of a permanent or general character, or to those which are temporary and restrictive in their operation and effect; and ordinarily an ordinance relates to the. former, while the latter may be adopted by resolution. The former must be enacted with all the formality required by the charter, while the latter may be adopted with less formality, and its legal effect determined less strictly, unless the charter otherwise provides. 2 Abbott’s Municipal Corp., §§ 514-516; 1 Beach, Public Corp., §§ 483, 484, 486; 21 Am. & Eng. Enc. Law (2 ed.), 948; 28 Cyc. 347; City of Alma v. Guaranty Sav. Bank, 60 Fed. 203 (8 C. C. A. 564); City of Lincoln v. Sun Vapor Street Light Co., 59 Fed. 756 (8 C. C. A. 253); City of Central v. Sears, 2 Colo. 589.

Whatever may be the requirement as to the form of enactment, the former is municipal legislation, while the latter is not. In Shaub v. Lancaster City, 156 Pa. 362, 366 (26 Atl. 1067, 1068: 21 L. R. A. 691), it is said: “But there is a well-marked distinction between acts that are legislative, and that lay down a rule of action for the citizens or the city, and acts that relate to the daily administration of municipal affairs. The latter may well be described as ‘business’ to be transacted by councils, and may be properly left to them to dispose of by ‘order or resolution.’ ” And this distinction is not destroyed by reason of the fact that by the Portland charter much of the latter class of business must be accomplished by ordinances, and not by resolutions. This will not bring the latter within the classification of municipal legislation. 1 Beach, Public Corp., § 484. Therefore much of the municipal business that might appear to be within the legislative act, and therefore embarrassed by the application of the referendum, is not in fact legislation within the meaning of Section la, Article IV, of the constitution, although included in the language of the statute.

The motion for rehearing is denied.

Reversed: Rehearing Denied.